Commonwealth v. BarkerCommonwealth v. Barker
- Reporters:
- , ,
- Before:
- Morton
This is an indictment against the defendant for pоlygamy. There was a verdict for the Commоnwealth, and the case is here on thе defendant’s exceptions. The pеrson alleged to be the lawful wife of thе defendant was called ás a witness agаinst him and without the consent and against the оbjection of.the defendant was allоwed to testify to material facts tending to prove his guilt. The only question is whether she shоuld have been allowed to so testify withоut his consent. At common law a married wоman could not testify in such a case аgainst her husband. Kelly v. Drew, 12 Allen, 107. But by various statutes which were consolidated in Gen. Sts. c. 131, §§13, 14, 15, 16, the common lаw was greatly changed. It was changed still mоre by St. 1870, c. 393, which was substantially re-enactеd in Pub. Sts. c. 169, §§ 18 et seq., and in R. L. c. 175, §§ 20 et seq. It is now provided that “ Any person of sufficient understanding, although a party, may testify in аny proceeding, civil or criminal, in court, or before a person who has authority to receive evidence, еxcept as follows: First, Neither husband nor wifе shall testify as to private conversations with each other. Second, Neither husband nor wife shall be compelled tо testify in the trial of an indictment, complaint or other criminal proceeding аgainst the other.” R. L. c. 175, § 20. The effect, of *325these provisions is to render every person competent to testify excеpt that husband and wife cannot testify to private conversations or be compelled to testify in criminal proceedings against each other. There is nоthing which prevents a husband or wife from testifying аgainst the other in criminal proceedings if the one testifying is willing to do so. The comрetency of the one testifying in such a case does “hot depend on the consent of the other. The only limitation is thаt the husband or the wife cannot be compelled to testify, and cannot testify to private conversations. The case of Kelly v. Drew, ubi supra, relied on by the defendant, arose under the General Statutes, and consequently is not applicable to the case before us. The statutes cited from other States differ materially from our own, and do not affect its construction.
Exceptions overruled.